Jorge Ramirez Fernandez appeals from his convictions for sexual abuse of his granddaughters. He contends (1) he was denied due process when the trial court permitted the prosecution to amend the information during trial; (2) instructional errors deprived him of a fair trial; (3) prosecutorial misconduct deprived him of a fair trial; and (4) he received ineffective assistance of counsel. We affirm.
An information charged appellant with the five felony offenses: lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a);
A 10-day jury trial was conducted from April 12 to 25, 2011. Following the presentation of the prosecution's case-in-chief, the trial court granted the prosecutor's motion to dismiss count 1 (§ 1385), and permitted the prosecution to amend the information to change the time periods specified for counts 2 through 5, to conform to proof.
The jury found appellant guilty on all counts, and found true the allegation that the crimes involved more than one victim.
Appellant obtained new counsel and, unsuccessfully, sought a new trial. He was sentenced to state prison for 45 years to life.
1. Counts 1 and 2: Accusations by Jane Doe No. 1
Jane Doe No. 1 was born in December 1999, and was 11 years old when she testified at trial. Martha D. (Martha) is her mother and Ricardo F. is her
Ricardo got married when Jane Doe No. 1 was very young, and Jane Doe No. 1 frequently visited her father and stepmother's home while they were married. Ricardo divorced in October 2006, when Jane Doe No. 1 was six years old. He moved to Diamond Bar where he lived in his brother Juan's house alone for a time, until Juan and his family and, later, appellant and his wife, Carmen Fernandez, moved in. Jane Doe No. 1 rarely visited Ricardo after his divorce. Ricardo had no one to watch his daughter, and worked long hours and weekends. He also liked to party and stay out at night. Ricardo only picked Jane Doe No. 1 up for visits every two or three months.
In January 2009 Ricardo moved into an apartment in Pomona with appellant and Carmen. Jane Doe No. 1 said that when she visited her father, he often left her alone with her grandparents because he was working or out partying. Ricardo denied having left his daughter alone with appellant.
Jane Doe No. 1 testified that on numerous occasions when she visited Ricardo, appellant touched her breast and her vagina. Sometimes he touched her outside of her clothes, but most of the time he touched her skin under her clothes. Appellant moved his hand around when he touched her breast. Appellant began touching Jane Doe No. 1 when she was in prekindergarten, and it continued while she was in kindergarten, first, second and third grade. He touched her vagina more than 10 times when she was in the second and third grades. The touching occurred when Ricardo lived at the Diamond Bar home and at the apartment in Pomona.
Once, in the house in Diamond Bar when Jane Doe No. 1 was in second or third grade, she was lying on appellant's bed in his bedroom. Appellant was lying down on his side next to her; both of them were clothed. Appellant started touching Jane Doe No. 1's vagina under her pants. He moved his finger up and down, and inside her vagina. Appellant turned on the television to the Playboy channel where people were "together naked." He continued to touch Jane Doe No. 1's vagina while he watched TV. Neither he nor Jane Doe No. 1 said anything. Jane Doe No. 1 could not recall how long the touching lasted, but said appellant "usually" stopped if someone came into the room or the house.
On other occasions, appellant came into the kids' bedroom, put his hands under her shirt and squeezed her breasts with both hands. Jane Doe No. 1 was probably in kindergarten or first grade when appellant began to touch her breasts.
On more than one occasion, appellant showed Jane Doe No. 1 his "privates" and told her to touch it, but she refused. Once when she was eight years old and lying dressed on the bed, appellant took his penis out and showed it to Jane Doe No. 1. It was hairy and wrinkled. Jane Doe No. 1 touched appellant's penis at least once at his insistence.
On several occasions, appellant told Jane Doe No. 1 to put his penis in her mouth. Once she was sitting on the edge of the bed facing the door and appellant was lying behind her. Appellant told her to look and she saw his "privates." He told her to put it in her mouth. This occurred on several occasions.
Once, appellant held Jane Doe No. 1's hand, forcing her to touch his penis and demonstrating how to move her hand up and down. She kept pulling her hand away. The penis was very hairy.
Someone else was almost always home when appellant touched Jane Doe No. 1. Carmen, in particular, would be in the living room or elsewhere in the house.
It took a long time for Jane Doe No. 1 to disclose to her mother what appellant was doing. Jane Doe No. 1 was afraid her mother would get upset or mad, and appellant told her, "`Don't tell nobody. It's a secret.'"
Jane Doe No. 1 was in the third grade when she finally told her mother about the sexual abuse. She first told a school friend who told a school psychologist. The psychologist spoke with Jane Doe No. 1, who said she had lied to her friend. Jane Doe No. 1 did not want people at school to know about what had happened. The counselor contacted Martha on May 29, 2009, and told her about the sexual abuse. Martha and Jane Doe No. 1 went to the police on June 17, 2009. Martha also told Ricardo about the abuse. He went
Jane Doe No. 1 did not want her mother to tell the police about the abuse because she did not want to hurt appellant. She just wanted Martha to talk to appellant and to make him stop touching her. Jane Doe No. 1 believed he would stop if he knew her mother knew about the touching.
Jane Doe No. 1's health began deteriorating after the disclosure. She developed a cough and asthma, and had trouble sleeping. She underwent counseling and was hospitalized for pneumonia and bronchitis. Her outgoing personality changed, and she became less involved with activities.
On June 29, 2009, Martha met with Carlos, Ricardo's twin brother and the father of Jane Doe No. 2. Carlos asked Martha why Jane Doe No. 1 did not visit the family anymore. Martha told him that appellant had been molesting her daughter. Carlos asked Martha if she was sure. Carlos said he had taken psychology classes and knew that children Jane Doe No. 1's age do not lie. Carlos then made a phone call to find out where his own daughter was. Martha told Carlos he should tell his wife, Paula, about what happened and that he needed to protect Jane Doe No. 2. She told him about the change to Jane Doe No. 1's visitation schedule with Ricardo.
Martha received a call from Paula sometime in May 2010. Martha thought the call was unusual because she and Paula had only spoken three times in 12 years. Paula was getting a divorce from Carlos, and thought Martha might have some advice for her. When the two women met, Paula asked why Jane Doe No. 1 had stopped spending time with the family. Martha told her appellant had been molesting Jane Doe No. 1. Paula began to cry and said the same thing had happened to Jane Doe No. 2, who had told Paula about the abuse months or a year before.
Ricardo watched from the audience as his daughter testified at appellant's preliminary hearing. Jane Doe No. 1 had difficulty testifying and spoke softly. Ricardo was disappointed, which may have shown on his face. Martha sat next to her daughter while Jane Doe No. 1 testified at the preliminary hearing. Martha noticed that Jane Doe No. 1 was having trouble testifying, and also noticed Ricardo in the audience. He looked upset and maintained an angry posture while Jane Doe No. 1 testified. Ricardo had not seen his daughter since April 2010. He believed she did not need him and it was best if he was not in her life.
2. Counts 3, 4 and 5: Accusations by Jane Doe No. 2
Jane Doe No. 2 was born in September 2001 and was nine years old when she testified at trial. Paula and Carlos are Jane Doe No. 2's parents, and appellant is her paternal grandfather. Jane Doe No. 2 lived out of state with her parents until they separated. She and her mother moved to California in October 2008. The "off and on" relationship between Paula and Carlos remained tumultuous from October 2008 to June 2010. From November 2008 to November 2009, Jane Doe No. 2 lived, variously, with her mother, both of her parents, and her maternal or paternal grandparents. In November 2009, Paula and her daughters (Jane Doe No. 2 has a younger sister) rented an apartment in the same Pomona complex in which appellant and Carmen lived.
While they were living in the same apartment complex, appellant began touching Jane Doe No. 2 when she would visit and sat on the bed in his room to watch TV. Once, appellant came into the room, sat next to Jane Doe No. 2 and touched her skin under her pants and underwear, moving his hand in a circular motion. He also touched her breasts twice with one hand using the same circular motion.
Jane Doe No. 2 did not tell anyone about the touching at first because she did not think anyone would believe her. The touching happened most times Jane Doe No. 2 visited appellant's apartment. Other people were in the apartment when it happened, but they did not see it.
Once, when Jane Doe No. 2 spent the night at appellant's house, she was lying on a blanket on the floor and appellant lay down next to her. He touched her "bottom" on her skin. Another time, appellant kissed Jane Doe No. 2 on her "bottom" when she was on his bed. He pulled down her pants and kissed her vagina about six times. She told him to stop three times and tried to push his head away, but he would not stop.
Jane Doe No. 2 waited a while before she told anyone about the abuse. But, after appellant failed to stop, Jane Doe No. 2 finally told her mother in May 2009. Jane Doe No. 2 was in third grade at the time. Paula told Carlos. Outside of Jane Doe No. 2's hearing, her parents agreed they did not believe her accusations, and decided not to confront appellant without proof. Instead, they planned to watch appellant's behavior to see if any abuse occurred and, if it did, to report it. Carlos and Paula told Jane Doe No. 2 they would talk to appellant so she would know that the touching would not happen again, but they did not talk to him.
Paula and Carlos continued to allow Jane Doe No. 2 to spend time at appellant's home, although they made sure someone else was there too.
Mostly, appellant touched Jane Doe No. 2's backside using a circular motion. Once, Jane Doe No. 2 had been sleeping in the same bed as appellant and Carmen, in Ricardo's bedroom. When Carmen left the bed for a time, appellant touched Jane Doe No. 2's bottom under her clothes. The last time he touched her was about two months before Jane Doe No. 2 revealed to her mother that appellant was touching her again.
Carlos testified that he met with Martha on June 29, 2009, because he wanted to know why Jane Doe No. 1 had stopped spending time with the family. Martha said she did not want her daughter around the family because there was too much fighting. She did not tell Carlos about any sexual abuse.
When Paula met with Martha in May 2010, she asked why Jane Doe No. 1 no longer visited the family, and learned that she had been molested by appellant. Paula told Martha that Jane Doe No. 2 had made the same accusations against appellant the year before, and asked Martha why she had not told Paula or Carlos about the sexual abuse. Martha explained that she told Carlos, and assumed that he shared the information with Paula. Carlos denied having spoken with Martha about Jane Doe No. 1's accusations. He said there had been one or two weekends in April 2009 when both Jane Doe No. 1 and Jane Doe No. 2 had overnight visits at the Pomona apartment, and that the girls had a good relationship with one another. He said that when he and Paula first spoke to Jane Doe No. 2 about her accusations against appellant, she told them the same thing had happened to her cousin. He believed his daughter made up the accusations against her grandfather because her cousin had also done so. Carlos said his daughter spent time alone watching television in appellant's bedroom, but he never saw, heard or suspected any improper behavior.
Jane Doe No. 2 did not know appellant had also been touching her cousin, Jane Doe No. 1. The cousins never discussed the allegations and had only seen one another very occasionally for several years before this case went to court. When Jane Doe No. 2, Paula and Carlos had been interviewed by the police in mid-May 2010, Carlos told the interviewer he knew about the allegation because his daughter told him about the touching in July 2009. He did not accuse Jane Doe No. 2 of lying, nor did he claim that she had accused appellant only because her cousin had done so. Carlos thought Paula might be mad at him because of an incident at a party involving another woman.
Appellant testified on his own behalf. He had been married to Carmen for 33 years, and they had three sons, Ricardo, Carlos and Juan. He never touched his granddaughters Jane Doe No. 1 or Jane Doe No. 2 in a sexual manner and was never alone in a bedroom with either one. Ricardo told appellant about Jane Doe No. 1's allegations in May 2009. Appellant found out about Jane Doe No. 2's allegations in May 2010 when the police came to his home.
Appellant did not see Jane Doe No. 1 often, but he did sometimes pick her up for her visits with Ricardo. He saw Jane Doe No. 2 regularly after she was seven years old. Once during 2009 the girls visited at the same time.
On one visit in January 2008, appellant walked into a room when Jane Doe No. 1 was using a computer, and she quickly shut down the screen as he came in. He found a piece of paper with the Web site www.sexboyandgirl.com written on it under the mouse after she left the room. Appellant made Jane Doe No. 1 pull up the site for him and saw that it was sexual in nature. He told Martha about it. Appellant asked Jane Doe No. 1 about the site, and she was afraid to tell him who had given her the information but said her mother knew about it. She asked appellant not to tell Ricardo. Later that month, appellant was at Martha's house waiting to pick up Jane Doe No. 1 for a visit. Martha's nephew, a bald man in his early 20's, wearing baggy clothing, arrived. Jane Doe No. 1 ran to him, called him "uncle" and gave him a hug. Martha became upset and forcibly separated them. She told Jane Doe No. 1 the man was not her uncle, and the man and Jane Doe No. 1 looked at one another and laughed. Later in the car with appellant, Jane Doe No. 1 told him the man was the one who had given her the Web site address and that Martha knew about it but appellant could not say anything because the man was dangerous. Appellant agreed to remain quiet about Jane Doe No. 1's relationship and interactions with the man. On another visit during a party, appellant left an unwanted beer by his bed. Jane Doe No. 1 drank some beer and told appellant she had been given beer and offered cigarettes at home by the man who gave her the Web site address.
One day, during a visit to his home in Diamond Bar, Jane Doe No. 2 whispered in appellant's ear, "Do whatever you want to me." He asked her what she meant. She told him she had seen her mom and her father's best friend having sex in her parents' bedroom and heard her mother say that to the man.
2. Carmen Fernandez
Carmen testified that appellant was an excellent husband, father and grandfather and she had no doubts about his character.
Carmen had got along well with Paula when she and Carlos were first married but later found Paula to be a bad, dishonest person. Carmen described Jane Doe No. 2 as smart, vivacious and very affectionate with both Carmen and appellant. After Carlos and his family moved to California, Jane Doe No. 2 visited regularly. Jane Doe No. 2 was affectionate with appellant and spent lots of time playing with him. But the two of them were never alone together. Paula always asked Carmen to take care of her children, but Carmen refused. The last time Paula asked Carmen to watch her kids was two weeks before Paula filed the police report against appellant.
Carmen said that Jane Doe No. 1 and Jane Doe No. 2 were together at their grandparents' apartment three or four times. Appellant was never alone with either girl. One of Jane Doe No. 2's parents was always there when she visited her grandparents. Neither girl ever slept in a bed with Carmen and appellant. The girls only watched TV in the living room.
Carmen did not see Jane Doe No. 1 as often as she saw Jane Doe No. 2, but sometimes she and appellant picked her up for visits with Ricardo. They took her places and spent time with her until Ricardo arrived. After Martha and Ricardo divorced, Carmen spoke only a few times to Martha. Martha said "ugly things" about Ricardo.
Sarah M. was married to Juan. Sarah described appellant as a good grandfather who spent time and played with all his grandkids, including Jane Doe No. 1 and Jane Doe No. 2. Sarah often saw Paula at the Pomona apartment with Jane Doe No. 2, even after she and Carlos separated. Sarah never saw anyone go into the master bedroom; everyone was always together at the home.
Sarah testified that appellant and Carmen went everywhere together and relied heavily on one another. Carmen did not drive and relied on appellant to take her places. Beginning in February 2008 until April 2011, Carmen regularly spent her daytime hours at Sarah's home in Burbank, where she helped care for Sarah's children. Appellant dropped her off on his way to work.
During the preliminary hearing, Sarah confronted Paula and Jane Doe No. 2 in the court hallway. She yelled at Paula, calling her a "fucking liar,"
3. Monica Hosozawa
Monica Hosozawa worked with Ricardo and Carlos. Paula had thought Hosozawa and Carlos were having an affair, and frequently called Hosozawa and sent her text messages. Hosozawa hung up. Paula told Hosozawa that she had a plan to retaliate against Carlos. In late April and early May 2010, Paula called Hosozawa repeatedly. Paula was upset that Carlos took his daughters to parties at which there were women with whom Paula believed Carlos had had affairs. Paula told Hosozawa she and Martha had met and discussed Jane Doe No. 1's accusations of sexual abuse by appellant, and Paula said he had also molested Jane Doe No. 2. Paula asked Hosozawa for advice about what to do.
1. Appellant forfeited his right to complain that the trial court erred when it permitted the prosecution to amend the information.
After the prosecutor rested, she made an oral request to amend the information to conform to the testimony at trial. The prosecutor said she initially charged counts 1 and 2 based on the acts occurring at specific times when Jane Doe No. 1 was in the second and third grades, as she had testified at the preliminary hearing. But at trial Jane Doe No. 1 testified she could not recall specific dates and said the acts had generally occurred when she was in those grades and after appellant lived in the Diamond Bar home with Ricardo.
Based on this testimony, the prosecution requested that count 1 be dismissed and that the date range therein be included in an extended date range for count 2 (continuous sexual abuse). Defense counsel did not object, and the trial court granted the proposed amendment, dismissing count 1 and interlineating count 2.
After the verdict, appellant retained new counsel who filed a motion for a new trial, arguing that the court erred in allowing the belated amendments. The motion was denied.
Appellant maintains he was denied due process when the court permitted the prosecution to amend the information to conform to proof during trial because he was denied notice and an opportunity to prepare a defense.
2. There was no instructional error.
a. CALCRIM No. 3501
After discussing the standard and modified unanimity instructions with counsel, the trial court instructed the jury with the modified instruction, CALCRIM No. 3501, rather than CALCRIM No. 3500. Appellant's counsel took no position as to which instruction should be given and acquiesced without objection. On appeal, however, as he did in his posttrial motion, appellant contends the court erred when it gave CALCRIM No. 3501, rather than the standard unanimity instruction. Although appellant failed to object during trial to the instruction given, we address the merits of his contention.
Here, the trial court instructed the jury pursuant to CALCRIM No. 3501 as follows:
"The defendant is charged with lewd and lascivious act upon a child under the age of 14 in Counts 3 and 4, Count 3 alleges that the act occurred sometime during the period of November 1, 2008 to July 31, 2009. Count 4 alleges that the act occurred sometime during the period of August 1, 2009 to May 15, 2010.
"The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless:
"1. You all agree that the People have proved that the defendant committed at least one of these acts during the relevant time period and you all agree on which act he committed for each offense;
"2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during the relevant time period and have proved that the defendant committed at least the number of offenses charged."
CALCRIM No. 3501 is an alternative instruction to CALCRIM No. 3500. CALCRIM No. 3501 affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to the acts constituting each offense. But unanimity may also be found under CALCRIM No. 3501 if the jury agrees "that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]."
Jane Doe No. 2 testified about both specific and generic instances of molestation. Specific instances of touching by appellant included one occasion while Carmen was cooking dinner. Another took place on an evening when Jane Doe No. 2 and Paula spent the night at appellant's home. Paula set up a blanket on the floor for them to sleep on and went out, leaving Jane Doe No. 2 with her grandparents. Appellant joined Jane Doe No. 2 on the blanket and rubbed his hand in a circular motion "in [her] private part," her "bottom." A third incident of abuse took place when Jane Doe No. 2 slept with her grandparents in Ricardo's bed, and appellant touched her when Carmen left the bed to use the bathroom. Jane Doe No. 2 also described a specific incident when she was lying on her grandparents' bed in appellant's apartment, and he pulled her pants and panties down and began "kissing [her] on [her] private part," and refused to stop even after she told him three times to do so and pushed his head away. But, even as to her more specific descriptions of most of these acts, Jane Doe No. 2 was unable to provide much detail, or any dates when the abuse occurred or to enumerate how many times the touching happened. She also testified more generically about repeated, indistinguishable acts of molestation by appellant; e.g., his having touched her "bottom," when she visited his apartment "most times" or "two times a day." And, contrary to appellant's assertion, the record does not reflect that Jane Doe No. 2 testified that the specific events she recalled occurred only before her first disclosure of the abuse to her parents in May 2009. She did not state when all the specific acts she described happened in relation to that disclosure. Rather, she testified that they occurred both before and after her initial disclosure.
Both girls testified about numerous, repetitive molestations which took place over a defined period of time. Each described the distinct types of abuse to which she had been subjected in sufficient detail, was able to identify the locations where it took place, and was able to give a general estimate of the frequency of events. Appellant offered no evidence in his defense that might focus doubt as to any specific act of abuse as distinguished from any other act
The jurors either believed all the acts occurred, or they disbelieved the girls' stories completely. As Jones explains, if it is not reasonably likely that jurors will disagree as to which particular act the defendant committed and the only issue is whether they were committed at all, the jury should be given the modified unanimity instruction contained in CALCRIM No. 3501. This is so because the instruction allows the jurors to convict if they agree unanimously on certain acts or if they unanimously agree the defendant committed all the acts alleged by the victim. (Jones, supra, 51 Cal.3d at pp. 321-322.) The jury was properly instructed with CALCRIM No. 3501.
b. CALCRIM No. 330
Appellant also contends that his state and federal constitutional rights to a jury trial, confrontation and due process were violated because the jury was improperly instructed with CALCRIM No. 330. He is wrong.
In accordance with CALCRIM No. 330, the jury was instructed:
"You have heard evidence from a child who is age ten or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony.
"In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the child's age and level of cognitive development.
"When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember and communicate.
"While a child and adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child."
Defendant maintains this instruction should not have been given because it "invaded the jury's province" and unfairly bolstered Jane Doe No. 2's credibility, and violated his "constitutional right to present a defense and to confront Jane 2's testimony against him by unfairly impairing his ability to
Appellant maintains that, by instructing on CALCRIM No. 330, the trial court unfairly and unconstitutionally restricted the jury's consideration of evidence affecting the credibility of Jane Doe No. 2 who was nine when she testified.
Appellant concedes that his contentions have been uniformly rejected in published decisions rejecting the same argument with respect to CALJIC No. 2.20.1, the predecessor to CALCRIM No. 330. (People v. McCoy (2005) 133 Cal.App.4th 974, 979-980 [35 Cal.Rptr.3d 366]; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457 [271 Cal.Rptr. 653]; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 [14 Cal.Rptr.2d 9]; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393 [7 Cal.Rptr.2d 660].)
People v. McCoy, supra, 133 Cal.App.4th 974 summarized its predecessor cases: People v. Harlan, supra, 222 Cal.App.3d 439 "held that the instruction neither excessively inflates a child's testimony nor impermissibly usurps the jury's role as arbiter of witness credibility nor violates the accused's right to confront a child witness nor `require[s] the jury to draw any particular inferences from a child's cognitive ability, age and performance as a witness. Rather, it instructs the jury to consider such factors in evaluating a child's testimony.' [Citation.] In ... People v. Jones[, supra,] 10 Cal.App.4th 1566 ..., the court held that the instruction `presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child's testimony, including his [or her] demeanor, i.e., how he or she testifies on the stand,' all without `"foreclos[ing] independent jury consideration of the credibility of a child witness."' [Citation.] [People v. Gilbert, supra, 5 Cal.App.4th 1372] held that CALJIC No. 2.20.1 neither `"lessen[s] the government's burden of proof"' nor `"instructs the jury to unduly inflate the testimony of a child witness"' [citation]: `The instruction tells the jury not to make its credibility determinations solely on the basis of the child's "age and level of cognitive development," but at the same time
3. Appellant's assertions of prosecutorial misconduct fail.
Appellant contends the prosecutor committed misconduct during her closing argument, going "beyond the pale in attacking the character of the girls' fathers, grandmother, and appellant himself, while vouching for the credibility and character of the complaining witnesses and their mothers." He also argues that the prosecutor sandbagged him by "sav[ing] most of the venom for her rebuttal closing, giving appellant no opportunity to respond to a vicious and misleading recitation of the evidence." He also claims his trial counsel was ineffective for failing to object, and that the result of these errors cannot be deemed harmless. None of appellant's contentions has merit.
Appellant asserts that the prosecutor committed misconduct by statements she made in her closing argument. In response, the Attorney General argues that by objecting only one time each on the vague ground of "improper argument" during the prosecutor's initial and rebuttal closing arguments, appellant has forfeited this issue.
b. No prosecutorial misconduct
Even on the merits the result would not change; there was no misconduct.
Here, the prosecutor's comments were grounded in the evidence regarding the victims and their families or were reasonable inferences drawn from that evidence, especially relating to the girls' tenacity in sticking to their individual stories over the course of time and in the face of overt hostility aimed
The prosecutor made no direct personal attacks on appellant or any defense witness. But, the prosecutor's comments did address testimony by appellant and defense witnesses that implied the girls' mothers concocted the allegations of molestation in order to retaliate against their ex-husbands and had exposed or allowed their daughters to be exposed to sexual or pornographic material. The prosecutor also commented on the defense witnesses' many contradictions of one another, and on Ricardo's frequently internally inconsistent testimony, particularly his attempts to portray himself as a vigilant, attentive father when Jane Doe No. 1 visited him at appellant's home, when in fact Ricardo regularly just dropped his daughter off and left. Finally, in response to appellant's closing argument, the prosecutor argues that appellant's grown sons — the victims' fathers — had a motive to lie on his behalf, because both were financially dependent on him. Sarah also had a motive to lie, because she continually relied on Carmen (who in turn relied on appellant to drive her places) to care for her children. Nothing the prosecutor said was an improper appeal to the jurors' emotions nor was it aimed at inflaming their passions.
Appellant also complains that he was sandbagged because the prosecutor saved her most venomous attack for her rebuttal argument, giving him no opportunity to respond. He likens this case to People v. Robinson (1995) 31 Cal.App.4th 494 [37 Cal.Rptr.2d 183], where the court found the prosecutor committed misconduct by giving a "perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply," followed by a "`rebuttal'" argument that was "10 times longer (35 reporter transcript pages) than his opening argument." (Id. at p. 505.) Here, however, the prosecutor's opening argument (20 transcript pages) was not
c. Harmless error
We find that, even if the prosecutor's argument constituted misconduct, it did not render the trial so fundamentally unfair that it triggered the Chapman standard. Nor is it reasonably probable that a more favorable result would have been reached absent the alleged objectionable argument. Reversal is neither warranted nor appropriate. (People v. Watson, supra, 46 Cal.2d at 836; People v. Barnett (1998) 17 Cal.4th 1044, 1133 [74 Cal.Rptr.2d 121, 954 P.2d 384].) As the jury heard, appellant's granddaughters testified credibly and presented powerful evidence against him. It is not reasonably probable that appellant would have achieved a more favorable outcome had the prosecutor not made her allegedly improper argument.
d. Ineffective assistance of counsel
Finally, we turn to appellant's claims of ineffective assistance of counsel. He asserts in a conclusory manner that his trial counsel was ineffective for failing to object to the trial court's amendment of the information, the prosecutor's allegedly improper argument, and sandbagging tactics in her closing argument. However, as we concluded above, the court's amendment of the information was not error and there was no misconduct by the prosecutor. Thus, we also conclude on this record that appellant's trial counsel was not ineffective for failing to object, because there was a tactical reason for not doing so. In short, there was no error. (See People v. Lucas (1995) 12 Cal.4th 415, 436-443 [48 Cal.Rptr.2d 525, 907 P.2d 373]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008 [50 Cal.Rptr.3d 875] [on direct appeal "a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission"].)
This was an emotionally charged case involving two young girls and their volatile family. The closing argument (including rebuttal) was relatively short and focused, by necessity, primarily on the credibility of the victims vis-à-vis that of appellant, the girls' fathers and other members of appellant's family. The prosecutor commented, but did not dwell, on objectionable material. Defense counsel reasonably could have concluded that she did not want to draw additional attention to those statements by objecting, having the court rule on the objections, striking them, and having the court give an admonition. Because this would have been a reasonable trial strategy, we cannot find defense counsel's performance deficient. Appellant's claim of ineffective assistance of counsel as to prosecutorial misconduct lacks merit. (People v. Adanandus, supra, 157 Cal.App.4th 496, 515-516.)
4. Reversal is not required because defense counsel did not present a Stoll expert at trial.
Appellant argues he was denied effective assistance of counsel because his trial attorney declined to call an expert under People v. Stoll (1989) 49 Cal.3d 1136 [265 Cal.Rptr. 111, 783 P.2d 698] (Stoll).
On April 13, 2011, during jury selection, defense counsel informed the court she had neglected to add Dr. Cherkis, an expert, to her witness list. Counsel had not previously notified the prosecutor about this witness — whom she was not yet sure she wished to call — and did not have his report, but she expected it by the next day.
Later that day, defense counsel told the court that Dr. Cherkis's report was being faxed to the court, but the report did not promptly arrive and the court informed appellant's counsel she needed to get the report that night.
On April 19, 2011, the court informed the parties that it had received and reviewed Dr. Cherkis's one and a half page report the day before. Appellant's counsel informed the court that the report was "inadequate for testimony," and said she no longer planned to call Cherkis as a witness.
In a motion for a new trial, appellant argued that his trial counsel was ineffective, in part, for failing to present a Stoll expert. After the conviction, appellant's new defense counsel had a Stoll evaluation conducted by a psychologist, Dr. Malinek, who said he "doubt[ed] [appellant] is a pedophile,... since pedophiles typically show sexually inappropriate interest in children much earlier in life," and appellant was 51 with no prior history of sexual misconduct. Malinek also said that "all the criminological risk factors, which have been associated with recidivism among sex offenders, are absent in this case." Further, appellant's scores on two "state of the art" actuarial tools used to assess the risk of recidivism, were "unusually low, ... suggesting a very low recidivism risk." Appellant argued that this expert testimony would have created a reasonable doubt as to his guilt.
The trial court denied the motion for a new trial. As to this argument, the court said: "Insofar as the failure to call Dr. Cherkis as a [Stoll] expert or somebody else as a [Stoll] expert, again, I don't think the defense has established that there was not a tacti[cal] reason for not doing that. I think it could be for any number of reasons. Many lawyers feel that jurors don't take kindly to expert testimony in the psychological area. I don't think there's necessarily ... no tactical reason why she might not want to call a defense expert in that area. I don't think that fact considered either individually or cumulatively with any other allegation would have reasonably or likely changed the outcome of the trial. So I find any tactical error or inadequate performance by [trial counsel was harmless], and I'm not finding that because I don't think the defense has established it [(error)], but even if somebody were to disagree with me and reach that conclusion, I don't find it to have been material to the outcome of the case. I don't think reasonably and likely that a different outcome would have been reached had such an expert ... testified."
Appellant's claim fails. While the case is close, he did not definitively establish that trial counsel lacked a tactical reason for declining to present a Stoll expert at trial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) We agree with the trial court that it is possible that appellant's counsel decided a psychological expert might not hold sway with the jurors and chose not to present that testimony.
Even if we assume trial counsel was deficient in failing to present an expert, appellant cannot show that he suffered any prejudice as a result. Appellant maintained he did not molest either of his granddaughters and claimed they made up the allegations in collusion with one another and their mothers to retaliate against his sons. But, despite the considerable effort expended to establish this conspiracy, the defense never presented any evidence to show that Jane Doe No. 1 or Jane Doe No. 2 had any interactions that would have permitted them to have engaged in such concerted efforts, let alone that their mothers did so.
Further, most of the acts of molestation described by the girls differed between them. Jane Doe No. 1 testified about behavior by appellant that involved him frequently touching her vagina, inserting his finger into her vagina, and appellant's displaying of his penis to Jane Doe No. 1 and also asking her to touch it. The behaviors Jane Doe No. 2 described were different. They involved appellant frequently touching her "bottom," his oral copulation of her vagina and no exposure of his penis. In addition, both girls were reluctant to report appellant's actions to the police. The girls' testimony
In addition, the record reflects that Paula did not learn that Jane Doe No. 1 had been molested until she met with Martha in May 2010 to discuss an unrelated matter. That was a year after the abuse of Jane Doe No. 1 had been reported to the police, and about a year after Jane Doe No. 2 first told her own parents she had been molested. Only after she checked again with her daughter and learned appellant was still sexually abusing her did Paula and Jane Doe No. 2 also report the abuse to the police.
In Stoll, four defendants were jointly tried and convicted of 36 counts of lewd conduct against seven young boys. (Stoll, supra, 49 Cal.3d at p. 1141.) Two of the defendants, convicted on four and five counts, tried to present expert testimony that they displayed no signs of sexual deviance. (Id. at pp. 1141-1142.) In finding prejudice, Stoll emphasized that the defendants had "mounted a thorough attack on the credibility of each witness." (Id. at p. 1162.) In addition, four of the five victims admitted they lied at the preliminary hearing, two witnesses admitted to at least one untruth in their testimony at trial; and all five victims contradicted their pretrial statements in some respect. (Ibid.) Plus, one defendant had a partial alibi. (Ibid.)
Stoll resembles this case in that, as in most cases involving accusations of sexual molestation, there is no physical evidence or eyewitness testimony to corroborate the allegations of abuse. But the two cases also differ markedly in that, here, the prosecution lacked the numerous and fatal flaws emphasized in the prejudice analysis in Stoll. The Stoll testimony proffered in the new trial motion, if believed, would tend to suggest appellant may not have committed the charged offenses. (Stoll, supra, 49 Cal.3d at p. 1161.) But, absent some significant impairment of the victims' credibility or evidence to support appellant's conspiracy theory, we cannot agree that there is a reasonable probability the Stoll evidence would have produced a different result on any count in this case. Appellant's claim of ineffective assistance fails.
5. Appellant has not shown cumulative error.
The judgment is affirmed.
Rothschild, Acting P. J., and Chaney, J., concurred.
Appellant's counsel agreed.
Additionally, the court observed: "the defense, in this case, is not an alibi or lack of opportunity. The testimony throughout this trial has been that [appellant] had access to the children. He's not denying it in his testimony. None of the ... witnesses have indicated there was not reoccurring access to the children. It's not an alibi or lack of opportunity defense. It's simply the children are making this up and it did not happen. I don't think there's any unfair prejudice ... because it doesn't change the defense. I don't believe it would change your cross-examination of any witness and seems to conform to proof at this point. It is merely bringing the information in line with the evidence that's actually been presented at trial without any prejudice or down side to [appellant], that's my general feeling on this. Do you [defense] wish to be heard?"
Appellant's counsel had no comment.
A prosecutor is not "required to discuss his [or her] view of the case in clinical or detached detail." (People v. Panah (2005) 35 Cal.4th 395, 463 [25 Cal.Rptr.3d 672, 107 P.3d 790].) He or she may make comments "aimed solely at the persuasive force of defense counsel's closing argument, [but] ... not at counsel personally.... [Citations.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1155 [63 Cal.Rptr.3d 297, 163 P.3d 4], disapproved on a different point in People v. Doolin, supra, 45 Cal.4th at p. 421 & fn. 22.) Appellant points to no comment by the prosecutor, nor has our review disclosed any, that rises to the level of misconduct under either federal or state standards. Viewed in context, none of her comments were personal attacks on defense counsel but were instead a fair rebuttal to doubts the defense tried to cast on the victims' credibility. The prosecutor's remarks related to the evidence in the case and urged the jurors not to be distracted by defense counsel's focus on the dynamics of the victims' dysfunctional extended family. (See People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [108 Cal.Rptr.2d 291, 25 P.3d 519] [no reasonable likelihood jury improperly influenced by prosecutor's remarks that defense counsel's "`job is to create straw men ... put up smoke, red herrings'"].)